from the nice-to-see dept

Via Michael Geist, we learn of a new UN report on Human Rights, that (among many other things) talks up the importance of free speech online (pdf), worries about the expansion of third party liability laws as a tool to suppress speech online, and is generally concerned about government attempts to censor the internet. Where it gets even more interesting is where it pretty clearly states that three strikes or other efforts to kick people off the internet for file sharing is a trend it does not approve of at all:

While blocking and filtering measures deny access to certain content on the Internet,
States have also taken measures to cut off access to the Internet entirely. The Special
Rapporteur is deeply concerned by discussions regarding a centralized “on/off” control over
Internet traffic. In addition, he is alarmed by proposals to disconnect users from Internet
access if they violate intellectual property rights. This also includes legislation based on the
concept of “graduated response”, which imposes a series of penalties on copyright
infringers that could lead to suspension of Internet service, such as the so-called “three strikes-
law” in France and the Digital Economy Act 2010 of the United Kingdom.

Of course, supporters of such laws will downplay the significance of this, but they might not realize just how much influence these types of reports can have over time. Either way, it's nice to see UN officials recognizing that yes, copyright can and often is used for censorship.

The report goes on to worry about ACTA as well:

Beyond the national level, the Anti-Counterfeiting Trade Agreement (ACTA) has
been proposed as a multilateral agreement to establish international standards on
intellectual property rights enforcement. While the provisions to disconnect individuals
from Internet access for violating the treaty have been removed from the final text of
December 2010, the Special Rapporteur remains watchful about the treaty’s eventual
implications for intermediary liability and the right to freedom of expression.

We keep hearing from supporters that there are no "free speech" concerns here, and yet the UN clearly sees the issues. Seems like ACTA supporters have a serious case of willful blindness.

On top of that, the UN report points to all sorts of other serious concerns that we've raised, including how "notice-and-takedown" provisions such as those found in the DMCA are open to widespread abuse.

In the recommendations section, the UN report is pretty clear and damning. Kicking people off the internet is a violation of existing civil rights:

The Special Rapporteur considers cutting off users from Internet access, regardless of
the justification provided, including on the grounds of violating intellectual property
rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of
the International Covenant on Civil and Political Rights.

Now watch as our usual "law & order" commenters rush to talk about how the International Covenant on Civil and Political Rights can be ignored as it's no big deal.

Finally, the report actually (amazingly) goes so far as to suggest countries "repeal or amend" any law that would kick people off the internet for infringing:

The Special Rapporteur calls upon all States to ensure that Internet access is
maintained at all times, including during times of political unrest. In particular, the
Special Rapporteur urges States to repeal or amend existing intellectual copyright
laws which permit users to be disconnected from Internet access, and to refrain from
adopting such laws.

While I doubt the report will have too much impact, it certainly is nice to see it getting some significant attention. It's too bad, but you can bet that politicians around the globe will simply ignore it... and when asked about it, will instead just point to debunked industry claims of "losses" to back up their ongoing push towards censorship and civil rights violations in the name of protecting the obsolete business models of a few industries.

As a web developer, having internet access revoked would kill my livelihood.

As a former political candidate, it would have killed my political potential and free speech rights.

As a current pundit and blogger, it would definitely violate my free speech rights.

All this and I don't have to be the person who actually infringed. It could have been my kid, my wife, a friend or a coworker. Anyone who used my internet connection would result in me being kicked off the internet and thus violating my rights.

Means nothing. It won't be until and an actual President, Prime Minister, Exalted Lord, or Emperor steps up and says that we are doing this wrong. The US entertainment industry and rights groups such as ASCAP or IFPI are trying to strangle the worlds innovative technologies, and even control the internet itself. As all other companies do, they need to adapt to what their market now looks like rather than forcing countries and governments to change the market to what they wish it was. It is not 1991 it is 2011 and the world and the market is different than it used to be. There is not going back not that we should want to, and we will not allow this travesty to continue.

What's interesting

What's interesting is the wording used. It's always worded as "cut someone off from the internet." The wording that should be used is "force a private company to quit providing services to an individual based on another private companies possibly unverified claim."

Applicable to Protect IP act

The report has these excellent words regarding the dangers of letting the service provider decide what is and is not infringing:

Lack of transparency in the intermediaries’ decision making process also often obscures discriminatory practices or political pressure affecting the companies’ decisions. Furthermore, intermediaries, as private entities, are not best placed to make the determination of whether a particular content is illegal, which requires careful balancing of competing interests and consideration of defences.

These words are even more pertinent when applied to Section 5 of the Protect IP Act, granting providers immunity when they voluntarily cut off service to those they feel may be infringing.

Re: What's interesting

Their wording is quite clear and matches what is meant. The other quote:

The Special Rapporteur considers cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate...

The report says that even if evidence supports it and a person is convicted of copyright infringement, it is still a civil rights violation to cut off their Internet access, because it is disproportionate to the crime.

The government doesn't send someone to jail for 5 years for driving 5 miles over the speed limit, that would be disproportionate. Nor should the government cut someone's Internet access off for sharing a few bytes of infinitely copyable information.

The Special Rapporteur calls upon all States to ensure that Internet access is maintained at all times, including during times of political unrest.

This is a worthy ideal to strive for, but it is unfortunately impossible. Any governing body whose members are self-aware enough to recognize that the peoples' rights should trump their own desires would rule wisely enough that political unrest would not occur in the first place.

Re:

These people are just clueless about reality

I severely detest the concept of "IP" or intellectual property. This term obfuscates the inherent properties of cultural symbols, such as art, in order to implicate it as a thing than can be owned. The truth is, nothing in the copyright act defines the cultural symbols that authors create to be anything even resembling the respective author's property. It just doesn't. What it does say, in fact, is that the copyright (the temporary privilege to restrict copying) is the property of the author. The right is the property of the author, not the cultural symbol itself. The ideas and expressions incorporated into a work belong to everyone equally. Anything else is an attempt to connotate ideas with physical property, which is false, wrong, and bad for the progress of the arts.

The "three strikes" rule is a huge threat to the proliferation of the digital economy. When you cut off a user from the internet, you're cutting off a potential revenue stream. When you do this, you've done two things. First, you've eliminated all future digital sales from that person and likely they already avoid physical copies. And secondly, you've given them reason to boycott anything they may have wanted to actually pay you for. Since "potential sales" are so important to these people, cutting users off from the internet is not in their best interest.

I have a hard time taking anyone seriously that claims these "lost potential sales" actually add up to anything real if the option of getting it for free was removed. Where's the evidence that someone will "just buy it" if they can't share it. The truth is, you can't say for certain. You can't be certain what a person's incentives for such behavior are. Is it because they don't want to pay or do they just want to try the real thing before deciding if it's worth their money? Who can say? The evidence is impossible to gather, but a default assumption that they are taking it for free is not the best idea. Maybe the person downloading already paid for it, but their is damaged beyond usable condition? Should they be punished and subsequently those that facilitated it if that was the purpose? Enabling legal sharing also enables illegal sharing, but since money is involved, it becomes more important to stop the illegal than to preserve the legal and beneficial uses?

I love how free speech doesn't count when it conflicts with someone's profits. Let's just ignore every civil right when it conflicts the profits of a few enormous corporations or when it makes gathering evidence or preventing infringement harder. After all, why do we need to presume innocence for every person? If they've done nothing wrong, they have nothing to hide right? Wrong, innocence must be the default status of every living person. We all have the right to not have the government poking their noses into our business to find evidence because it's easier than waiting until probable cause occurs. Just like the TSA shouldn't be groping adults and children because they assume you are carrying a bomb or weapon rather than assuming you don't and only proceeding with a search when they have reasonable suspicion of a potential threat.

All of this behavior goes to show, that governments and the companies that pay them off, care more about controlling behavior they don't approve of rather than serving the universal public good. They do this because a people that are controlled are easier to govern and easier to profit from. They try to restrict people to behaviors along a path of their choosing not ours. It's easier, it's more profitable, and they keep getting away with it. That needs to change.

I Have To Say ...

Re: These people are just clueless about reality

I severely detest the concept of "IP" or intellectual property. This term obfuscates the inherent properties of cultural symbols, such as art, in order to implicate it as a thing than can be owned.

And if it can be owned, why is it that the creator gets to own every copy they sell? You don't see Ford trying to claim that it owns the car you just bought. Phillips doesn't try to claim that it owns your DVD player, so why can they claim to own the copy of the movie you just paid for?

And if IP is supposed to be the same as physical property, where's the warranty on it? I have at least two, fully legal copies of games that won't work on my system. There's a warranty on the media, but the EULA specifically states that the software itself is provided "as-is" with no warranties of any kind. Not only that, they also disclaim any responsibility for any damage their product might cause, even if such damage is the result of defects in the software. Why are they allowed to get away with this? Imagine if you bought a car and two days later, the wheels fell off while you're on the highway because they used substandard parts. When you contact the company they tell you that it's not their responsibility.

I have a hard time taking anyone seriously that claims these "lost potential sales" actually add up to anything real if the option of getting it for free was removed.

Back in the 1980s and 1990s, I had hundreds of games for the C64 and Amiga. I would never have bought even a fraction of those games if I couldn't pirate them. There was no easy way to pirate Atari cartridges, so over the life of the Atari, my family probably only bought maybe 10-20 games (and that's including my grandparents, who had their own). Our game collection didn't really start to grow until the market crashed and stores were selling games for as low as $2-5 each.

The majority of my Windows games have been bought either used, or at a local closeout store for $5 each. I haven't bought a single game when it was still considered current.

Where's the evidence that someone will "just buy it" if they can't share it.

I can provide evidence to the contrary. I didn't get broadband until the end of 2006. Before that I had dialup, which made it completely impractical to download movies, TV shows or games off the net. Just downloading a single MP3 file could take 10 minutes or more. Despite the fact that I didn't have the ability to get these things for free, I didn't buy them either. I own exactly one Hollywood movie, and one TV show on DVD; Firefly & Serenity.

The truth is, you can't say for certain. You can't be certain what a person's incentives for such behavior are. Is it because they don't want to pay or do they just want to try the real thing before deciding if it's worth their money? Who can say? The evidence is impossible to gather, but a default assumption that they are taking it for free is not the best idea.

In my case, I don't have the money to buy all the things that I want. I have very little money for luxuries, my internet access being the main one. I can't afford to go to the theater and spend $10+ on a single ticket. I can't afford the extra $60 a month it would cost to have all the pay channels on my cable service.

Not to mention that half the movies being released on DVD today are garbage. Seriously, some of them make the Blair Witch Project look like a masterpiece of expert filmmaking. I've seen films shot on cheap camcorders with "actors" obviously reading their lines off cue cards and special effects that look like they were done in Flash and they expect people to pay $20 for that crap?

Then there's the issue of TV shows. How is it "stealing" if I download a copy of something that I can watch for free? Or if I download a copy of a show that isn't available to me any other way? If Fox won't release the series Strange Luck on DVD, how are they losing anything by people downloading it?

I'm not into music though, so the music industry has nothing to worry about from me.

Re: Re: These people are just clueless about reality

"I can provide evidence to the contrary.I didn't get broadband until the end of 2006."

My comment was referring to the time after the paradigm shift, where people realized they can download everything they want. Before broadband became more ubiquitous, people didn't know they could download their content outside of the models the industry provided. My point was, now that they know, how can anyone be sure they will "just buy it" when you take that option away? Will they buy it instead or will they try to find another way around the system to continue getting content on their own terms?

Your example isn't so much evidence to the contrary, as it is the time before you knew you had a choice.

Re: Re: Re: These people are just clueless about reality

Your example isn't so much evidence to the contrary, as it is the time before you knew you had a choice.

Yes, but that makes it even more relevant. I didn't know of any other way to get content other than buying it, and yet I wasn't. It was the entertainment industry's ideal world, where people didn't have the means to widely pirate their content. By their thinking, I should have been buying tons of stuff. The fact that I didn't shows the fallacy in this thinking.

Even more so now that people have seen that there are alternatives to buying content.

Alas, tis not an UN report just yet

The special rapporteur has presented the paper, but the council on Humann Rights has not adopted the report nor has it made a recommendation. Also, the mandate of the special rapporteur was not prolonged. The issue is apparently closed.

It's perhaps better not to call this an UN report, because UN has not adopted it. (Although the UN HRC did commission it).